Failure to Specifically Plead an Affirmative Defense Means Reversal of Dismissal In Florida Eviction Action
September 8th, 2015
The failure of a tenant to comply with all requirements of statute prior to instituting a claim for recovery of a security deposit may lead to a dismissal of the action. A tenant, while still in possession of a rental, filed a complaint to recover their security deposit. The court in Volusia County dismissed the complaint for failure to allow the Landlord time to comply with Florida Statutes Section 83.49, specifically its notice provisions. See opinion below.
SHARON NESBITT, Plaintiff, v. MARY ANN JOHN, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2014 21087 CONS, Division 78. May 28, 2014. Honorable Shirley A. Green, Judge. Counsel: Sharon Nesbitt, pro se, Plaintiff. Jimmy Allen Davis, Law Offices of Jimmy Allen Davis, P.L., Deltona, for Defendant.
ORDER DISMISSING COMPLAINT WITHOUT PREJUDICE
THIS MATTER came before the Court for consideration of Defendant, Mary Ann John’s Motion to Dismiss filed May 11, 2014. The Court has reviewed the substance of the motion, the initial pleading filed by the Plaintiff, the statutory guideline cited in the Motion to Dismiss, and being otherwise apprised in the premises hereby issues the following ruling.
IT IS FOUND, ORDERED AND ADJUDGED that Defendant’s Motion to Dismiss is hereby GRANTED.
Plaintiff, Sharon Nesbitt, was before this Court on an eviction action filed by Defendant (see John v. Nesbitt, 2014 21015 CONS (Volusia Cty. Ct., 2014)) on April 10, 2014. Six (6) days later on April 16, 2014, Plaintiff filed the complaint that commenced this action. The prior eviction action resolved in favor of the Defendant and a Writ of Possession was issued and returned executed on May 2, 2014.
This action arises because the Plaintiff desires that her security deposit be returned to her. Fla. Stat. §83.49 of the Florida Residential Landlord and Tenant Act governs the relationship between the two parties with regard to the security deposit, and gives a landlord fifteen (15) days from the time property is vacated to return a security deposit or otherwise give notice of any intention to impose a claim upon it within thirty (30) days.
A statutory cause of action cannot be commenced until the claimant has complied with all the conditions precedent. Inv. & Income Realty, Inc. v. Bentley, 480 So.2d 219 (Fla. 5th DCA, 1985), citing Ferry-Morse Seed Co. v. Hitchcock, 426 So.2d 958 (Fla. 1983). In a case seeking the return of a security deposit, the condition precedent is obviously giving the landlord enough time to comply with Fla. Stat. §83.49.
The Plaintiff here initiated this lawsuit prior to the Defendant having the property turned over to her with the assistance of the Volusia County Sheriff’s Department. It is obvious to the Court from examing the dockets that the Defendant was not afforded the statutory opportunity to determine whether any damages would or could be assessed, nor the opportunity to issue proper notice of her intent (if any) to impose a claim on Plaintiff’s security deposit.
Because the Plaintiff filed this lawsuit prior to possession of the property being returned to the Defendant, it is clear that the conditions precedent to filing this suit has not been met. This Court’s jurisdiction over this matter has not been perfected, and therefore the Plaintiff’s case is DISMISSED without prejudice.
Defendant is the prevailing party, and pursuant to Fla. Stat. §§83.49(3)(c) and 83.48 is entitled to recover her attorney’s fees and costs. This Court reserves jurisdiction to determine the amount of attorney’s fees and costs at a later date.